Case Document

100%Judiciary

HCA 3017/2017

[2020] HKCFI 760

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3017 OF 2017

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BETWEEN
	TIGER RESORT ASIA LIMITED	Plaintiff
and
	KAZUO OKADA	1^st Defendant
	OKADA HOLDINGS LIMITED	2^nd Defendant
	LI JIAN	3^rd Defendant
	GOLDLUCK TECH LIMITED	4^th Defendant
	OKADA FINE ART LIMITED	5^th Defendant

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Before:

Hon K Yeung J in Chambers

Date of Hearing:	8 May 2020
Date of Decision:	8 May 2020

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DECISION

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1.This is the plaintiff’s application by summons dated 18 March 2020 (the “Summons”) for what is sometimes called a banker’s book order pursuant to s 21 of the Evidence Ordinance in respect of a specific account (the “DB A/C”) which the 1^st defendant (“D1”) held with the Deutsche Bank AG, Hong Kong Branch (“DB”).

2.The parties have been before me a number of times. This application may be seen as a sequel to one of the orders I made in my decision handed down on 31 May 2019 (the “31 May Decision”). I refer to the 31 May Decision. In gist:

(a)    by the Writ hereof, the plaintiff claims against D1 the sum of HK$135 million (the “HK$135 million”) which the plaintiff claims D1 has misappropriated;

(b)    the plaintiff’s claim is proprietary in nature;

(c)    a tracing exercise ensued. I have previously allowed the plaintiff’s applications for two banker’s book orders to facilitate that exercise (see my Reasons for Decision handed down on 16 March 2018);

(d)    the tracing exercise led the plaintiff to a sum of JPY 1,002 million (previously referred to as the “3^rd Sum”, which term I adopt) that was transferred into the DB A/C on 7 June 2016;

(e)    for the reasons set out in the 31 May Decision (and see in particular §33), I was satisfied that there was a clear link between the 3^rdSum and the HK$135 million (in particular HK$130 million thereof);

(f)    for the reasons set out in the 31 May Decision, I acceded to the plaintiff’s application for inter alia a further proprietary injunction with ancillary disclosure order requiring D1 to preserve and restraining him from dealing with inter alia the 3^rd Sum or its fruits or proceeds.

3.D1 has failed to provide the disclosure he has been ordered to make in respect of the 3^rd Sum.

4.By the Summons, the plaintiff seeks a further banker’s book order against DB in respect of the DB A/C relevant to the 3^rd Sum.

5.The Summons was originally set down to be heard on 17 April 2020. Before the hearing, I raised query with the plaintiff’s solicitors as to whether the Summons had been served upon D1, which in my view under normal circumstances and on the facts of this case should. The Summons together with the affirmation in support were subsequently on 14 April 2020 served upon Messrs Tse Yuen Ting Wong, solicitors for D1 (“TYTW”)[1]. On 16 April 2020, TYTW wrote in and asked for an adjournment of “at least 3 weeks” to prepare for the hearing. I adjourned the hearing to today (ie 8 May 2020). This morning, neither TYTW nor D1 appears.

6.I have considered the authorities cited to me, which include Arnott v Hayes (1887) 36 Ch D 731, Bankers Trust Company v Shapira [1980] 1 WLR 1274 and A Co v B Co [2002] 3 HKLRD 111. I have considered the terms of the draft order, which scope is adequately defined. In my view, a clear case for a banker’s book order has been established. Save certain proposals clarifying the width of the draft order (which proposals the plaintiff has accepted), DB does not oppose the Summons.

7.In all the circumstances, I grant the order in terms of the draft order at p 122‑5 of the hearing bundle (save that the word “reasonable” at §5 should also be deleted).